Crosby v. United States

delivered tbe opinion of the court:

Tbe claimant, a first lieutenant in the Army, unassigned, was ordered to report at headquarters, San Francisco. _ He reported there, and was placed on “ awaiting orders ” by tbe commander of tbe department. From month to month be regularly reported himself at headquarters, and while at San Francisco was honorably mustered out of service by order of tbe President. He claims commutation for fuel and quarters while there awaiting orders, without showing that lié made unsuccessful apphcation therefor, or that there were no quarters in San Francisco. Tbe court is therefore of opinion that be cannot recover.

Mr. Loiondes thereupon moved for a new trial, on tbe ground that, relying upon tbe authority of. Whittlesey’s Case (5 C. Cls. R., 99), be bad not thought it necessary to show, as be might have done, that there were no quarters in San Francisco.

Tbe motion was granted, tbe court adhering to its opinion notwithstanding tbe decision in Whittlesey’s Case. Tbe claimant’s counsel then submitted the case on an agreed stipulation of both counsel that there were no quarters at that time in San Francisco.

On tbe stipulation and on tbe facts found at tbe former trial, judgment was rendered for tbe claimant.